Returning Stolen Property to the Estate

Bava Kama (9:9) | Yisrael Bankier | 3 months ago

The Mishnah deals with a gazlan (a robber) that swears falsely,
denying he stole. The Mishnah teaches that if he later admits to the
robbery, he must pay the victim back including an additionally chomesh
fine (twenty-five percent of the value of the item stolen) and is
obligated to bring a korban ashem (guilt offering).

The Mishnah (9:9) deals with the case where the victim is the
galzan's father and what should be done if the gazlan admits he
stole after the father died. As a beneficiary of the estate, one may
question whether the payment is necessary. The Mishnah however
explains that the item needs to be returned to the sons or brothers (in
the absence of sons). The Bartenura explains that even if the gazlan
wanted to retain the object and compensate the other heirs, the gazlan
must nevertheless return the object. This is because the gazlan must
fulfil the obligation: "he must return the object he stole" (Vayikra
5:23). In other words, even though financially there may be no practical
difference, in order to achieve an atonement, the stolen item must leave
his possession.

The Bartenura however adds that this obligation only exists if the
exact object is still in his possession. The Tosfot Yom Tov explains
that this is the indeed the opinion of the Rambam. The Rambam rules
if the object is still in his possession, he would need to give the item
to his brothers and then calculate his share in the estate. If it is
not, or has undergone a shinui (had been modified such that is now
considered the property of the gazlan) then he would only need to do
an accounting with his brothers regarding the value of the stolen item.
The Tosfot Yom Tov explains that once the original stolen object is no
longer available, he would indeed be required to compensate his victim.
Yet this would no longer fall under the obligation of "he must return
the object he stole". This explains why the Rambam maintains that he
need not pay the value to the estate. As an heir he can retain the value
before making the accounting with his brothers.

The Grach notes that there are two laws in gezeila that will help us
understand the Tosfot Yom Tov. He cites the Rambam (1:1) who
explains:

If one steals a perutah worth from his friend, he violates a
negative prohibition as it states "do not steal". He does not receive
lashes, since the [prohibition] is repaired by fulfilling the
positive mitzvah… "he must return the object he stole" – this is a
positive mitzvah. Even if the stolen item is burnt [which prevents
him from fulfilling the positive mitzvah] he [still] does not
receive lashes, since he is obligated be repay the value, and
[regarding] any prohibition that demands payment, one does not
receive lashes.

The Grach notes that according to the Rambam there are two
independent obligations that apply to a thief. The first is returning
the stolen object based on the above cited pasuk. There however is
another obligation to compensate the victim when the item cannot be
returned based on the next pasuk that states "and he must pay".

Interesting the Aruch HaShulchan (ChM 367:15) understands the Rambam
differently. He explains the once the father dies, since he is a
beneficiary, all that exists is the mitzvah of hashava and he need
not lose out financially. Consequently, if he has the item, he returns
it to the brothers and then does an accounting (including the value of
the returned item) to calculate his share in the estate from the rest of
the property. If the item is no longer, the Aruch HaShulchan
understands the accounting stated by the Rambam in a different manner.
The brothers take part of the estate that is equivalent to the money the
gazlan owes, which would be considered as a fulfilment of hashava.
The gazlan would then take from another part of the estate against
that amount proportional to his share in the estate. In other words, the
Aruch HaShulchan understand the cases when the stolen object is no
longer in the opposite manner. There is no financial obligation, yet the
mitzvah of hashava is fulfilled through an exercise in accounting.